Case Note & Summary
The petitioner, Shri Narayan Babi Salgaonkar, a police constable, filed a Criminal Writ Petition before the Bombay High Court at Goa challenging an order dated 09/10/2015 passed by the Additional Sessions Judge in an appeal under Section 29 of the Protection of Women from Domestic Violence Act, 2005 (DV Act). The respondent, Smt. Jayshree alias Manasi Narayan Salgaonkar, his wife, had filed an application under Section 26 of the DV Act in a pending divorce suit, seeking reliefs under Sections 18 to 22 of the Act. The petitioner contended that such an application was not maintainable in a civil proceeding like divorce, and that the appeal under Section 29 did not lie against an order of a civil court. The court framed five questions of law: (i) maintainability of Section 26 application in civil proceedings; (ii) whether only the aggrieved person can file such application in proceedings initiated by her; (iii) whether the need to establish domestic violence is dispensed with; (iv) whether an appeal under Section 29 lies against an order of a civil court; and (v) whether the impugned order was liable to be set aside. The court held that an application under Section 26 is maintainable in any legal proceeding, including a civil suit for divorce, as the DV Act permits reliefs to be sought in any court. However, such application can only be made by the aggrieved person in proceedings initiated by her against the respondent. The court further held that the requirement to establish domestic violence is not dispensed with; the civil court must be satisfied of domestic violence before granting relief. An appeal under Section 29 lies to the Sessions Court against any order passed on a Section 26 application, regardless of the court that passed it. On the facts, the court found that the respondent had made out a prima facie case of domestic violence and the impugned order was not perverse. The petition was dismissed.
Headnote
A) Domestic Violence - Maintainability of Application under Section 26 in Civil Proceedings - Section 26 of Protection of Women from Domestic Violence Act, 2005 - Application under Section 26 is maintainable in a suit for divorce, which is a civil proceeding, as the DV Act allows reliefs to be sought in any legal proceeding before a civil court, family court, or criminal court. (Paras 2-5) B) Domestic Violence - Who Can File Application under Section 26 - Sections 2(a), 2(q), 26 of Protection of Women from Domestic Violence Act, 2005 - An application under Section 26 can be made by the aggrieved person only in proceedings initiated by her against the respondent, as defined under the Act. (Paras 2-5) C) Domestic Violence - Necessity of Establishing Domestic Violence - Sections 18-22, 26 of Protection of Women from Domestic Violence Act, 2005 - The need to establish a case of domestic violence, prima facie or otherwise, is not dispensed with when a civil court entertains an application under Section 26; the court must be satisfied that domestic violence has occurred before granting reliefs under Sections 18 to 22. (Paras 2-5) D) Domestic Violence - Appeal under Section 29 Against Order of Civil Court - Section 29 of Protection of Women from Domestic Violence Act, 2005 - An appeal under Section 29 lies to the Court of Sessions against an order made by a civil court or family court on an application under Section 26 of the DV Act. (Paras 2-5)
Issue of Consideration
Whether an application under Section 26 of the Protection of Women from Domestic Violence Act, 2005 is maintainable in a suit for divorce, which is purely a civil proceeding; whether such application can be made only by the aggrieved person in proceedings initiated by her; whether the need to establish domestic violence is dispensed with; whether an appeal under Section 29 lies against an order of a civil court on such application.
Final Decision
The court answered the questions as follows: (i) Application under Section 26 is maintainable in a suit for divorce; (ii) Such application can be made only by the aggrieved person in proceedings initiated by her; (iii) The need to establish domestic violence is not dispensed with; (iv) Appeal under Section 29 lies to Sessions Court against order of civil court on Section 26 application; (v) The impugned order is not liable to be set aside. The petition was dismissed.
Law Points
- Maintainability of application under Section 26 of DV Act in civil proceedings
- Definition of aggrieved person and respondent under DV Act
- Necessity of establishing domestic violence for relief under Sections 18-22
- Appeal under Section 29 against order of civil court on Section 26 application
